Post Copyright Reform In-Depth Analysis

Flo & Eddie and the Continued Debate on Copyrights for Public Performances of Sound Recordings

September 11, 2015 ,

On Wednesday, we filed an amicus brief in the 9th Circuit Court of Appeals, asking the court to overturn a district court decision for Flo & Eddie against Pandora. Flo & Eddie, the company that owns the rights to The Turtles’ albums, has sued streaming service Pandora, saying that Pandora needed to get a license to play their records.

If this sounds familiar, it’s because it’s just one of a number of suits Flo & Eddie is filing against Pandora and satellite radio broadcaster Sirius XM. Others have followed suit; ABS Entertainment is taking on the even bigger targets of the terrestrial broadcasters CBS Radio, iHeartMedia, and Cumulus.

Copyrights are federal law; state law stays out of it—except for this one odd area. Sound recordings weren’t protected under federal law until a law was passed in 1971. Starting the next year, sound recordings would get certain rights under federal law. But the law didn’t apply retroactively; sound recordings made before 1972 would be protected under whatever state laws had applied up until then.

What those state laws protected, invariably, was the right to make copies of the sound recordings. If you bought a recording of the Acme Orchestra playing a Beethoven symphony, you couldn’t make your own copies of the record and sell them—even though Beethoven was in the public domain.

Meanwhile, it seemed clear that you could, however, play recordings on the radio, as long as you had the songwriters’ permission (or, as with the Beethoven example, the work was in the public domain); the recording artists couldn’t say no. This is still the case today—AM/FM radio stations, bars and restaurants, your annoyingly retro boombox on the bus—none of those public performances have to pay the sound recording artists. (They do have to, through one method or another, get a license from the songwriters, though.) Federal law doesn’t give sound recordings the right to prevent public performances, except in certain digital transmissions.

But that didn’t stop Flo & Eddie (and later ABS Entertainment, and, in a suit settled earlier this summer, the RIAA) from suing under state law, claiming that the state laws gave sound recording artists the right to prevent not just reproductions, but public performances, of their works.

In a decision this February, a federal court in California decided that California law did, in fact, give pre-1972 sound recording artists a public performance right. But how the court did that is what caused us to file our brief.

The California law that recognizes pre-1972 sound recording rights doesn’t actually specify what kinds of things they can keep others from doing—it just says that they get “ownership rights” in their works. The most logical way to read this would be to say that it meant whatever ownership rights that the California courts had recognized in the past—to date, that really only seems to be the right to keep others from making unauthorized copies.

Instead, the district court took that to mean “all ownership rights that could attach to intellectual property.” Which is very, very broad. Not only would it include public performance rights, it would include all sorts of rights that no one has ever granted to sound recording artists—in California or elsewhere in the country. For instance, you could possibly attach a right of private performance to copyrighted works if you had a Congress so inclined. No one has ever done this—it’s plainly insane to require someone to get a license to play an album they’ve bought in private—but if we’re giving pre-1972 sound recording artists ALL OF THE RIGHTS, well, how is that not included?

Even if you limited the rights granted to just those that federal law gives to various other types of copyrighted works (though there’s nothing in the law that suggests this as a limiting principle), you still end up with clearly absurd situations. You’d end up preventing people from displaying pre-1972 albums in shop windows, for example. Or you’d be granting Flo & Eddie the right to prevent someone from shredding one of their works—a right that federal law gives to certain visual artists, but not to any musicians.

Even worse, the district court says that the only exception that applies to the California pre-1972 right is the single one listed in its text—a carve-out that lets people make soundalike recordings. According to the court, no other exceptions exist. Which leads us to ask what happens to venerable and first amendment-protecting exceptions like fair use? Or the personal property-defending, free market-enhancing first sale doctrine? The mind reels.

Aside from the sort of conniptions that might befall someone peculiarly obsessed with the structure of the copyright laws, the decision has more practical effects. If you have to get permission from each rightsholder of pre-1972 works in order to play them on the radio, or via streaming, who ends up getting played? Right now, digital sound recording performances on Sirius XM and Pandora and other radio-like streaming services can get permission via a statutory license, meaning they don’t have to go door-to-door for permissions, and rightsholders can’t pick and choose who gets to play their songs, and at what price.

Creating a less uniform system for older works actually makes it less likely that older works will get played—how many of these services will do more than grab a license from the biggest names, or the labels with the biggest catalogs? In other words, not only would pre-1972 music be less likely to be played; it’s the less-played, most underappreciated tracks from back then that will be most likely to fall off the air entirely. This can't be what anyone in Congress or in Sacramento intended when they created the laws around pre-1972 sound recordings. But it's what ends up happening–the biggest names benefiting at the expense of smaller artists and of the public–if copyright protections are taken too far.